Admissibility of criminal defendants' taste in entertainment

[RESEARCH] Should the prosecution be able to use evidence that a defendant listens to gangsta rap or death metal, plays violent video games, or reads gruesome books? In a recent law review article, Prof. Helen A. Anderson examines the different treatment of producers of these works (when sued civilly or censored in some way) and the consumers of the works (when tried for violent crimes). The producers are protected by the First Amendment -- but First Amendment arguments are not always even raised on behalf of the consumers.

Helen A. Anderson, The Freedom to Speak and the Freedom to Listen: The Admissibility of the Criminal Defendant's Taste in Entertainment, 83 Or. L. Rev. 899 (2004).

Prof. Anderson recommends:

The First Amendment does not erect a barrier to the admission of relevant evidence, but neither should it be completely trodden underfoot whenever the state seeks to introduce evidence of a defendant’s taste in books, movies, or music. Where such evidence is likely to be extremely prejudicial, as it will always be when the state seeks to tie violent entertainment to the crime, courts should require more than a mere similarity between the crimes depicted and the crime charged. In addition, reviewing courts should not give trial courts broad discretion to determine whether the defendant’s constitutional rights are affected; constitutional issues should be reviewed de novo as questions of law. Finally, courts should engage in harmless-error analysis cautiously.

Id. at 936.

Prof. Anderson observes that producers and consumers may have been treated differently with respect to these First Amendment issues because of resource disparities. An entertainment corporation defending a suit may hire teams of expensive lawyers while most criminal defendants are represented by public defenders with overwhelming caseloads. It shouldn't be surprising then that the criminal cases don't have the constitutional issue briefed fully.

Prof. Anderson states that "better lawyering, beginning with timely and accurate objections, could go far toward changing the outcome with respect to consumption evidence in criminal trials." She hopes that the article "will help to alert defense counsel to the First Amendment issues at stake." Id. at 942.

Filed in: evidence, first-amendment, entertainment, criminal-law, Anderson, UW